Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NCI Holdings Pty Ltd

[2024] FWC 961

[2024] FWC 961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

NCI Holdings Pty Ltd

(B2024/416)

COMMISSIONER TRAN MELBOURNE, 12 APRIL 2024

Proposed protected action ballot of employees of NCI Holdings Pty Ltd

1. On 5 April 2024, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for a protected action ballot order in relation to certain employees of NCI Holdings Pty Ltd (NCI Holdings /the Employer) under s 437 of the Fair Work Act 2009 (Act).

1. I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation the same proposed agreement. AMWU’s application was decided by Deputy President Hampton on 9 April 2024[1] and the relevant order was issued[2].

1. On 8 April 2024, NCI Holdings informed the Commission that it opposed the application. In summary, NCU Holding’s opposition was twofold:

2. the CEPU was not a bargaining representative, as no employees had appointed the union and nor were any employees a member of the union, and

3. the CEPU was not genuinely trying to reach an agreement as it had not attended any bargaining meetings.

1. NCI Holdings did not raise any matters relating to the ballot questions. The ballot questions were the same as set out in AMWU’s application.

1. I listed the matter for hearing at 3:30pm on Wednesday 10 April 2023. Ms Elizabeth McGrath represented the CEPU at the hearing. Ms Despina Veselinovski represented NCI Holdings.

1. At the hearing, Ms Veselinovski advised the Commission that NCI Holdings would not press its opposition if I could be satisfied that it had members who were employees and that a person who had been attending bargaining meetings had done so on behalf of the Applicant.

1. I therefore ordered that the parties confidentially provide me information to allow me to satisfy myself. The CEPU was ordered to provide me with a list of its members and a declaration that a person who attended bargaining meetings as ‘union representative’ did so on its behalf. NCI Holdings was ordered to provide me with a list of employees who would be covered by the proposed enterprise agreement. I also ordered that this material would be confidential and not disclosed to other parties or otherwise published or provided to any other person.

1. On 12 April 2024, I reviewed the provided material and confirmed my satisfaction to the parties.

1. NCI Holdings then indicated that it no longer opposed the application.

1. I am satisfied that the Applicant has standing to make the application in accordance with s 437(1). I am also satisfied that there is a notification time in relation to the proposed agreement.

1. On the basis of the material before me, including the declaration of Chelsea Hill, Legal and Industrial Admin Facilitator setting out the steps taken in bargaining with NCI Holdings and that it has been, and is, genuinely trying to reach agreement with them.

1. I am satisfied that all of the requirements in s 443(1) of the Act have been met.

1. The ballot is to be conducted by the Australian Electoral Commission (AEC).

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 27 May 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR773466.

COMMISSIONER

[1] [2024] FWC 905.

[2] PR773296.

Printed by authority of the Commonwealth Government Printer

<PR773465>